When babies need tending and parents need mending: accommodating employees on the basis of family status

What if a single mother asks to miss work to care for her sick child? Or an only child asks for a reduced work week to care for an elderly parent?

For many years, discriminating on the basis of family status has been illegal in most Canadian jurisdictions. However, it is only recently that the courts and adjudicators have been called upon to decide the scope of an employer’s obligation to accommodate on the basis of family status.

In these cases, an employee generally asks to miss work (or change his or her hours) to care for a child or a parent and the employer refuses.

The dilemma

Most work obligations interfere with parental obligations. The issue in these cases is when does a parental obligation trump a work obligation.

If work obligations always trump parental obligations then a parent could never prove discrimination. If parental obligations always trump work obligations then an employer would always be required to accommodate the employee’s request.

The two-part legal test

Generally, an employer has no duty to accommodate an employee unless the employee can prove a prima facie case of discrimination. Most family status cases have focused on whether the employee has proven a prima facie case.

Once an employee has proven discrimination, then the employer has a duty to accommodate unless it causes undue hardship.

Kevin MacNeill and Kristine Taylor presented interesting papers on this issue at Ontario Bar Association seminars held on June 7 & 13, 2013, respectively. Both speakers identified three different interpretations of family status discrimination.

The three approaches

It will be difficult for employers to know what obligations exist until the Supreme Court of Canada decides how to reconcile these three different lines of cases.

The narrow approach

The “narrow (British Columbia) approach” deals with a change in a term of employment (e.g., a change in an employee’s hours of work) that results in a serious interference with a substantial parental or other family duty or obligation. The B.C. Court of Appeal stated: “…in the vast majority of situations in which there is a conflict between a work requirement and a family obligation it would be difficult to make out a prima facie case (of discrimination)”. Under this approach, it is difficult for an employee to prove a human rights violation if an employer has refused to accommodate him or her.

The broad approach

Under the “road (federal) approach,” the Federal Court has rejected the B.C. approach. Canadian Human Rights Tribunal decisions have also specifically rejected the B.C approach, which requires an employee prove serious interference with a substantial parental or other family obligation to make out a prima facie case of discrimination. In a 2013 federal court decision, the broad approach was described as “whether the employment rule interferes with an employee’s ability to fulfil her substantial parental obligations in an realistic way.”

The middle approach

In the Power Stream case, an arbitrator rejected both the B.C. and federal approaches and adopted the “middle approach.” Arbitrator Jesin set out five factors that should be considered when deciding whether an employee has made out a prima facie case of discrimination, including (a) what prompted the adverse effect on the employee; that is, a change in a term of employment, or a change in the employee’s personal circumstances? and (b) what efforts has the employee made to self-accommodate? A 2012 decision of the Ontario Human Rights Tribunal which considered accommodation for elder care also rejected the B.C. approach.

Once the employee proves discrimination the employer must accommodate the employee’s request unless it causes undue hardship. It is essential that the employer satisfy both the procedural and substantial aspects of the duty to accommodate. An employer has a positive duty to inquire and assess an accommodation request on a case-by-case basis.

What is an employer to do?

At the moment, it depends on where the request for accommodation is made. British Columbia employers have the least onerous obligations and federally regulated employers appear to have the most onerous obligations.

Regardless of an employer’s jurisdiction, an employer should carefully review the factual background surrounding each employee’s accommodation request. Thereafter, the employer and employee should collaboratively explore possible solutions.

Given the aging population and our burdened health care system, I expect the number of requests for family status accommodation will increase in the future. As soon as a single approach to defining this legal obligation is identified, I also anticipate that most requests for family status accommodation will be addressed quickly.

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For the past 25 years, Doug MacLeod of the MacLeod Law Firm has been advising and representing employers in connection with employee terminations. If you have any questions, you can contact him at 416 317-9894 or at doug@macleodlawfirm.ca. Read more